The opinion of the court was delivered by: William H. Yohn Jr., Judge
Defendant Allen S. Stratton has filed a motion for modification of an imposed term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2). Stratton seeks reduction of his sentence following Amendment 706 to the Sentencing Guidelines, which reduced the offense levels of crack-based offenses and was made retroactively applicable by Amendment 713, effective March 3, 2008. U.S.S.G. Supp. to App'x C, Amend. 706, 711, 713.
The court must address whether such a reduction is justified in this case and, if so, the unsettled issue of what effect United States v. Booker, 543 U.S. 220 (2005), has on defendant's motion. Specifically, the court must determine whether Booker authorizes the court to vary (i.e., impose an out-of-guideline sentence as a variance) from the applicable amended Guidelines range when considering the amount of sentencing reduction warranted in this case. The court concludes that Stratton is eligible for a sentencing reduction pursuant to § 3582(c)(2). However, because the court concludes that Booker and its progeny do not apply to § 3582(c)(2) proceedings where the original sentence was imposed prior to Booker, the court may not vary from the applicable amended Guidelines range, the limits of which are binding on the court. The court will therefore allow defendant and the government to present evidence and argument as to the amount of reduction warranted, within the limits of the amended Guidelines range.
On December 1, 2000, the court sentenced defendant Allen S. Stratton to 240 months' imprisonment, 8 years' supervised release, a $400 special assessment, and a $1,500 fine on three counts of distribution of crack cocaine within 1,000 feet of a school and one count of possession with intent to distribute crack cocaine within 1,000 feet of a school, all in violation of 21 U.S.C. § 860(a).*fn1 (Sentencing Tr. 80:20-83:4, Dec. 1, 2000 (Doc. No. 81).)
Stratton sold crack cocaine to undercover police officers on three occasions. This conduct occurred within 1,000 feet of a school. Additionally, upon searching a house in which Stratton regularly dwelled (also within 1,000 feet of a school), police found drugs, drug paraphernalia, and cash. While fleeing the police, Stratton threw money (including pre-recorded "buy" money) and a packet of marijuana onto the street.
Under the guidelines applicable to crack offenses, the offense level for Stratton's sentenced conduct would have been 32, calculated as follows: 26 pursuant to the drug quantity table in U.S.S.G. § 2D1.1(c), plus 2 pursuant to § 2D1.2(a)(1) because Stratton's conduct occurred near a school, plus 2 pursuant to § 2D1.1(b)(1) for possession of a firearm, plus 2 pursuant to § 3C1.1 for obstruction of justice. If Stratton had not qualified as a career offender, his criminal history category would have been IV. Under the Sentencing Commission's Sentencing Table, a 32-IV combination would have yielded a sentencing range of 168-210 months. However, Stratton qualified as a career offender, so § 4B1.1 directed that his offense level and criminal history category be increased to 37-VI, which yielded a sentencing range of 360 months-life.
At sentencing, however, the court found that a "criminal history category [of VI] significantly overrepresent[ed] the significance" of Stratton's criminal history. (Sentencing Tr. 78:9-15.) Therefore, pursuant to United States v. Shoupe, 35 F.3d 835 (3d Cir. 1994), the court granted Stratton downward departures in both offense level and criminal history category. The court departed downward to offense level 34 with a criminal history category of V, which yielded a sentencing range of 235-293 months. (Sentencing Tr. 79:12-20.) The court selected a term of imprisonment near the low end of that range: 240 months. (Id. 80:20-81:1.) As the court discussed with the government and defense counsel at oral argument, the court arrived at the 34-V combination as follows: (1) regarding offense level, the court gave defendant the benefit of slightly more than half the five-level difference between the non-career offender level of 32 and the career offender level of 37 and (2) regarding criminal history category, the court placed defendant between the non-career offender category of IV and the career offender category of VI. (Oral Argument Tr. 9:15-10:1, Aug. 14, 2008 (Doc. No. 126).)
In selecting the 240 months' sentence, the court considered many factors including, but not limited to: Stratton's youth at the time of his past crimes, the nature of his past crimes, his lack of repentance at the time of sentencing, and the fact that Stratton committed the instant offenses while on pretrial release for another offense. (Sentencing Tr. 79:21-80:19.) The underlying crack guidelines also served as a basis for Stratton's ultimate sentence, and the court twice noted the severity of the crack guidelines when considering the appropriate sentence to impose.*fn2 (Id. 79:21-80:3, 80:14-19.)
On November 1, 2007, the United States Sentencing Commission adopted Amendment 706 to the Sentencing Guidelines, which, as further amended by Amendment 711, decreased by two levels the base offense level for defendants being sentenced for crack offenses. See United States v. Wise, 515 F.3d 207, 219 (3d Cir. 2008) (citing U.S.S.G. § 2D1.1; U.S.S.G. Supp. to App'x C, Amend. 706). Amendment 706 was made retroactive pursuant to Amendment 713, which became effective on March 3, 2008. U.S.S.G. Supp. to App'x C, Amend. 713.
Pursuant to § 3582(c)(2), Stratton filed the present motion seeking a reduction of sentence under Amendment 706. Stratton initially proceeded pro se, but counsel was later appointed for him. Defense counsel has zealously and extensively argued that, in considering a reduction of Stratton's sentence, the court is not bound by the two-level reduction from Amendment 706. Rather, defense counsel argues that the Guidelines are now only advisory in light of Booker and not mandatory as they were at the time of the imposition of defendant's original sentence. The government opposes this proposition and argues that Booker does not apply in the present context. Moreover, the government argues that Stratton is not eligible for any relief under § 3582(c)(2) because his sentence involved the career offender guideline, which has not been retroactively amended.
Stratton urges the court, in considering the amount of reduction warranted, to give particular attention to two considerations: (1) the "over-punishment of the crack guidelines" (Oral Argument Tr. 16:20-22) and (2) defendant's "adjustment to incarceration and the progress he's made in his life towards making himself a better person and making himself a more productive member of society," (id. 19:13-17).*fn3
The court holds that defendant is eligible for a sentencing reduction under § 3582(c)(2). The court also holds that Booker and its progeny do not apply to a § 3582(c)(2) sentencing modification after the granting of a motion related to a pre-Booker sentencing. As before Booker, the court remains bound by the limitations that the Sentencing Commission, as authorized by Congress, has imposed on the modification of sentences imposed prior to Booker. Therefore, in the context of this § 3582(c)(2) motion, the court may not vary from the amended Guidelines range under § 3553(a) as Booker now authorizes for current sentencing proceedings.
A. Statutory Basis for Sentence Modification
In general, a court "may not modify a term of imprisonment once it has been imposed."
18 U.S.C. § 3582(c) (2006).However, Congress has empowered the courts to modify already-imposed sentences in limited circumstances, including: in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
Id. § 3582(c)(2) (emphasis added).*fn4 The Sentencing Commission has expressed its policy statement regarding sentence reduction pursuant to § 3582(c)(2) in U.S.S.G. § 1B1.10. Subsection (c) of § 1B1.10 sets out the "covered amendments" to the Guidelines that, pursuant to § 3582(c)(2), may be retroactively applied to reduce already-imposed sentences. See U.S.S.G. § 1B1.10(a)(2) (explaining that "reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. 3582(c)(2) if . . . [n]one of the amendments listed in subsection (c) is applicable to the defendant. . ."). Thus, for ...